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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.12 n.1 Pretoria  2012

 

ARTICLES

 

Minority rights, democracy and development: The African experience

 

 

Kwadwo Appiagyei-Atua

Senior Lecturer, Faculty of Law, University of Ghana

 

 


SUMMARY

The article argues that, in spite of recent attempts to marry human rights to development, such a marriage remains one of convenience or, rather, to the inconvenience of minority or indigenous peoples who are the focus of discussion. The article asserts that, contrary to the claim that the relationship between rights and development is non-existent to begin with, such a relationship does exist. The crucial issue, however, is the category of people who are allowed to enjoy rights to development and to enjoy the fruits thereof. This analysis is grounded in three types of relationship between rights and development. These are identified as positive, negative and passive relationships. The article contends that the positive relationship is captured and colonised by the political and economic elite who control and direct how and when those under their control should benefit from a negative or passive relationship approach between rights and development. It is contended that the negative and positive relationship perspectives have continued to dominate the dynamics of economic development from the Enlightenment era, through colonialism, post-colonialism and the globalisation era. In the context of promoting effective minority rights which lies at the heart of peace and stability in Africa, the article suggests a re-visioning of the relationship between rights, democracy and development in Africa which challenges the current notion of 'market democracy', and 'liberal international orthodoxy', among other mantras. The analysis tackles ways in which the effective promotion of minority rights can be realised.


 

 

“Full text available only in PDF format”

 

 

 

* LLB (Hons), BL (Ghana), LLM (Dalhousie), DCL (McGill); kappiagyeiatua@ug.edu.gh
1 Precisely during the time of the Enlightenment when the idea of progress is said to have emerged. See L Baeck 'Shifts in concepts and goals in development' in UNESCO Coals of development (1987) 37 42. Also, GG Iggers 'The idea of progress: A critical reassessment' (1965) 71 American Historical Review 1-17.         [ Links ]
2 D Nabudere The political economy of imperialism: Its theoretical and polemical treatment from mercantilist to multilateral imperialism (1977) ii.         [ Links ]
3 J Berting'Technological impacts on human rights: Models of development, science and technology, and human rights' in CG Weeramantry (ed) The impact of technology on human rights: Global case-studies (1993) 13 19.         [ Links ]
4 According to Berting, the subduing of nature in the Jewish and Christian religions helped lay the foundation for the rise of Western technology; Berting (n 3 above) 21.
5 As above.
6 K Appiagyei-Atua 'Developing indigenous perspectives on human rights as Akan contribution to international human rights law in the context of development' DCL dissertation, McGill University, 2000.         [ Links ]
7 CB Macpherson 'Politics: Post-liberal democracy?' in R Blackburn (ed) Ideology in social science (1976) 17.
8 Macpherson (n 7 above) 19.
9 J Bentham et al (eds) Rights, representation, and reform: Nonsense upon stilts and other writings on the French Revolution (2002) 291.         [ Links ]
10 Macpherson (n 7 above).
11 P Fiore 'La science du droit international: Horizons nouveaux' (1909) 16 Révue Générale de Droit International 478.         [ Links ]
12 See, eg, the International Court of Justice Advisory Opinion on Western Sahara para 80, in which it noted: 'Whatever differences of opinion there have been among jurists, the state practice of the relevant period [1884] indicates that territories inhabited by tribes or peoples having a social and political organisation were not regarded as terra nullius. It shows that in the case of such territories, the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers. Such agreements with local rulers, whether or not considered as an actual "cession" of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius.'
13 G Gozzi 'History of international law and Western civilisation' 20 April 2007 SSRN: http://ssrn.com/abstract=996239 or http://dx.doi.org/10.2139/ssrn.996239 (accessed 31 March 2012).
14 As above.
15 My emphasis.
16 See art 23(b) of the Covenant of the League of Nations.
17 After independence in 1957, Gold Coast was changed to Ghana.
18 RE Howard Human rights in Commonwealth Africa (1987) 9.
19 S Adenito 'Ijebu a B'Eyan ("Ijebu or human being?"): Nineteenth century origins of discrimination against Ijebu settlers in colonial Ibadan, Nigeria' in MU Mbanaso & CJ Korieh Minorities and the state in Africa (2010) 143.
20 K Arhin Traditional rule in Ghana: Past and present (1985); also, GN Ayittey Africa betrayed (1992).
21 P Uvin 'Ethnicity and power in Burundi and Rwanda: Different paths to mass violence' (1999) 31 Comparative Politics 253.         [ Links ]
22 Eg, the pygmies of the Great Lakes Region, the San of Southern Africa, the Hadzabe of Tanzania and the Ogiek, Sengwer and Yakuu of Kenya.
23 J Locke Two treatises of civil government (1988).
24 Refer to, eg, a speech by President Festus Mogae of Botswana in 2006 during the 40th anniversary of the country's independence in which he was quoted by the UN as saying: 'We should avoid setting up exclusive organisations whose membership is drawn from one tribe ... Our goal of nation building needs to prevail over narrow tribal sentiments.'
25 Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009).
26 Indirect rule has been defined by Dr Lucy Mair as 'the progressive adaptation of native institutions to modern conditions'. See KA Busia The position of the chief in the modern political system of the Ashantis (1968) 105.
27 D Pellow Landlords and lodgers: Socio-spatial organisation in an Accra community (2008).
28 In both cases, communities enjoyed a severely limited 'right of occupancy' over their lands. A colonial agent is quoted by Okoth-Ogendo: 'I am afraid that we have got to hurt their (the natives') feelings, we have got to wound their susceptibilities and in some cases I am afraid we may even have to violate some of their most cherished and possibly even sacred traditions if we have to move natives from land on which, according to their own customary law, they have an inalienable right to live, and settle them on land from which the owner has, under that same customary law, an indisputable right to eject them.' HWO, Okoth-Ogendo Tenants of the crown: Evolution of agrarian law and institutions in Kenya (1991) 58. See A Barume 'Indigenous battling for land rights: The case of the Ogiek of Kenya' in J Castellino & N Walsh (eds) International law and indigenous peoples (2004) 363 365.
29 See Cobo's definition of minorities below.
30 Umozurike comments: 'The most irrelevant factor in deciding the fate of the continent was the Africans themselves who were neither consulted nor appraised of the conference.' UO Umozurike 'International law and colonialism in Africa' (1979) 3 East African Law Review 47, cited in A Anghie Imperialism, sovereignty and the making of international law (2005) 91.
31 G Abraham 'Lines upon maps: Africa and the sanctity of African boundaries' (2007) 15 African journal of International and Comparative Law 61.         [ Links ]
32 W Zapf 'Modernisation theory and the non-Western world' paper presented to the conference 'Comparing processes of modernisation', University of Potsdam, 15-21 December 2003 http://bibliothek.wzb.eu/pdf/2004/p04-003.pdf (accessed 20 April 2012). Also see CK Wilber & K Jameson 'Paradigms of economic development and beyond' in CK Wilber & K Jameson Directions in economic development (1975) 7.
33 See, eg, AG Frank 'The development of underdevelopment' in JD Cockcroft et al (eds) Dependence and underdevelopment (1972).
34 L Baeck 'Shifts in concepts and goals in development' in UNESCO Goals of development (1988) 42 43. Other Western states that followed similar policies include Britain, France, Belgium, West Germany, Portugal, Spain, etc.
35 HS Truman Inaugural Address, 20 January 1949, in Documents on American foreign relations (1967). See G Esteva 'Development' in W Sachs (ed) The development dictionary: A guide to power as knowledge (1992) 6.
36 As above.
37 WW Rostow The stages of economic growth: A non-communist manifesto (1960).
38 These include (a) increasing individual occupational and social mobility together with a growing equality of educational opportunities; (b) a fading away of differences based on traditional differences and life-styles; (c) a concomitant growth of the middle classes as a consequence of the increasing demand for highly-skilled and professional workers; and (d) consequently, a decrease in collective types of antagonism, especially of class struggle.
39 S Shivakumar 'The constitutional foundations of development workshop in political theory and policy analysis' Indiana University, Bloomington, 2.
40 Abraham (n 31 above) 68.
41 Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), judgment of 22 December 1986, ICJ http://www.icj-cij.org/icjwww/ (February 2000).
42 Abrahams (n 31 above).
43 See arts III (2) & (3) of the defunct OAU Charter.
44 Adopted at the 13th ordinary session of the OAU in Port Louis, Mauritius, 2-5 July 1976.
45 R Barsh ‘Socially-responsible investing and the world’s indigenous peoples’ http://www.firstpeoples.org/corporate/background.htm (accessed 17 April 2012).
46 African Commission on Human and Peoples’ Rights Indigenous peoples in Africa: The forgotten peoples? The African Commission’s work on indigenous peoples in Africa (2006).
47 Y Ghai 'Human rights and governance: The Asian debate' (1994) 15 Australian Year Book of International Law 1.         [ Links ]
48 UN Special Rapporteur on Minority Rights: 'A group, numerically inferior to the rest of the population of a state, in a non-dominant position, whose members -being nationals of the state - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language' Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Document E/CN 4/Sub 2/384/Add 1-7 (1977).
49 Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. His definition is: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of that society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. Their historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors': Occupation of ancestral lands, or at least parts of them; common ancestry with original occupants of these lands; culture; language; residence in certain parts of the country, or in certain regions of the world; and, other relevant factors. Study on the Problem of Discrimination against Indigenous Populations, UN Doc E/CN 4/ Sub 2/1986/Add 4.
50 Approved and proposed for signature and ratification or accession by General Assembly Resolution 260 A (III) of 9 December 1948.
51 Adopted and opened for signature and ratification by General Assembly Resolution 2106 (XX) of 21 December 1965.
52 Adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its 76th session.
53 Adopted by General Assembly Resolution 47/135 of 18 December 1992.
54 Adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation at its 31st session on 2 November 2001.
55 Adopted by General Assembly Resolution A/61/L.67 of 13 September 2007.
56 Adopted by the African Commission on Human and Peoples' Rights at its 41st ordinary session held in May 2007 in Accra, Ghana.
57 African Commission on Human and Peoples' Rights advisory opinion (n 46 above) para 6 (Commission's emphasis).
58 Katangese Peoples' Congress vZaire (2000) AHRLR 72 (ACHPR 1995) para 6.
59 Advisory Opinion of 22 July 2010, para 81.
60 AR Chapman 'A "violations approach" to monitoring the International Covenant on Economic, Social and Cultural Rights' (1996) 18 Human Rights Quarterly 23.
61 The other two relate to state violations resulting from government actions, policies and legislation and the state's failure to satisfy minimum core obligations of enumerated rights.
62 Art 2(2) calls on state parties to guarantee that the rights enumerated in the Covenant 'will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'. Art 3 further amplifies that state parties must 'undertake to ensure the equal rights of men and women to the enjoyment of all economic, social, and cultural rights set forth in the present Covenant'.
63 Adopted and opened for signature and ratification by General Assembly Resolution 2106 (XX) of 21 December 1965 and entered into force 4 January 1969, in accordance with art 19.
64 Art 1(4).
65 According to Rothchild, a majoritarian vision of liberal internationalist orthodoxy 'calls for individual (but not group) rights, separation of powers, party competition, and tolerance of diversity can at times also be extremely rigid and conformist'. D Rothchild 'Liberalism, democracy and conflict management: The African experience' paper presented at Conference on Facing Ethnic Conflicts: Perspectives from Research and Policy Making, Bonn, Germany 14-16 December 2000 http://www.zef.de/download/ethnic_conflict/rothchild.pdf (accessed 31 March 2012).
66 Under art 4(h), the Union reserves the right to intervene in a member state 'pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity'.
67 Rothchild (n 65 above) 5.
68 S Shavikumar http://www.indiana.edu/~workshop/wow2/publications/jun1699.pdf (accessed 31 March 2012).
69 African Commission on Human and Peoples' Rights (n 46 above).
70 The Committee on the Elimination of Racial Discrimination, Statement on Africa: 20/08/99 A/54/18 para 24 (Other Treaty-Related Document) 55th session 2-27 August 1999 reiterating its recent decisions, declarations and concluding observations, such as decision 3 (49) of 22 August 1996 on Liberia; Resolution 1 (49) of 7 August 1996 on Burundi; decisions 3 (51) of 20 August 1997, 1 (52) of 19 March 1998, and 4 (53) of 18 August 1998 on the Democratic Republic of the Congo; the declaration of 13 March 1996 on Rwanda; the concluding observations on Rwanda of 20 March 1997; the concluding observations on Burundi of 21 August 1997; decisions 4 (52) of 20 March 1998, 5 (53) of 19 August 1998 and 3 (54) of 19 March 1999 on Rwanda; decision 5 (54) of 19 March 1999 on the Sudan, which were the results of the Committee's consideration of the ethnic conflicts in these state parties under its early warning and urgent action procedures within the context of the Convention. It also referred to the Secretary-General's report on 'Causes of conflict and the promotion of durable peace and sustainable development in Africa' (A/52/871-S/1998/318 dated 13 April 1998), which noted, among others, that 'the main aim, increasingly, is the destruction not just of armies but of civilians and entire ethnic groups'.
71 It is on record that in the last 30 years, more than 30 wars have been fought in Africa. In 1996 alone, 14 of the 53 member states of the OAU were affected by armed conflicts, accounting for more than half of war-related deaths worldwide and resulting in more than eight million refugees and displaced persons. Most of these states bear an ethnic dimension. CJ Bakwesegha Keynote Address on 'The Rise of the Ethnic Question' Bonn, Germany, 13-16 December 2000.
72 In the most serious such fire, in October 1998, more than one thousand people died in Jesse, Delta State, but similar explosions have continued to take place. Several hundred people died in July 2000 in a fire in Adeje, near Warri, Delta State, and dozens died from smaller explosions throughout the year. HRW 'Update on violations of human rights in the Niger Delta' http://www.hrw.org/backgrounder/africa/nigeriabkg1214.htm (accessed 17 April 2012).
73 As above.
74 'Minority Rights Group International, Minority Rights and Development: Overcoming exclusion, discrimination and poverty' (2002) executive summary of paper submitted to the UN Working Group on Minorities.
75 As above.
76 n 74 above, 12.
77 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982 para 36.
78 As above.
79 Adopted at the 8th Summit of the Assembly of Heads of State and Government of the AU held in Addis Ababa, Ethiopia, 29-30 January 2007 and entered into force on 15 March 2012.
80 See art 2(1) of the African Charter on Democracy, Elections and Governance.
81 Eg, the Preamble to the AU Constitutive Act states, inter alia: 'Conscious of the fact that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and integration agenda.'

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